Background: Discovery disputes over Facebook accounts and whether they are discoverable in civil cases are piling up. Courts and litigants continue to grapple with the central problem that even to the extent the information is properly discoverable, at least some portion of a litigant or party’s Facebook’s account deserves privacy protection and should also be protected by federal statutes such as the Stored Communications Act. On the other hand, an opposing litigant needs to get access to the Facebook profile in order to determine whether something contained in the account is relevant, in order to articulate a “likely to lead to the discovery of admissible evidence” argument.

Courts have come up with interesting and mostly imperfect ways to solve this problem. In one case, a court suggested that the litigants “friend” the court so the court could review the contents of the account which would be visible to the witness’s friends. (“Judge Offers to Facebook ‘Friend’ Witnesses in Order to Resolve Discovery Dispute.“) In this case, the court conducted an in camera review of the plaintiff’s Facebook profile and determined what information was discoverable.

The facts follow a familiar pattern. Plaintiff suffered a car accident, and sued, alleging he suffered physical and psychological injuries. He claimed that these physical injuries limited:

his ability to sit, walk, stand, ride in a vehicle, bend, stoop, push, pull, and lift. He claimed that he could not drive for any period of time and is physically limited as to riding his bicycle or motorcycle.

Defendant sought access to plaintiff’s Facebook and MySpace accounts. The court asked for plaintiff’s log-in information for these accounts. Plaintiff provided the Facebook password but said “he could no longer locate information related to his MySpace account, since he had neither activated nor used the account since November 2008.” [Ouch! Plaintiff is not alone, this BusinessWeek article notes that even one of the co-founders of MySpace no longer checks his MySpace account: “The Rise and Inglorious Fall of MySpace.”]

Discussion: The court reviews plaintiff’s Facebook page and concludes that the bulk of the material there is unrelated to the accident and not discoverable. There were a few items that were discoverable and these included:

- photos of plaintiff taking numerous motorcycle trips;

– photos of plaintiff hunting;

– photos and comments suggesting that plaintiff “may have recently ridden a mule”;

The rest of the page contained information that was not discoverable–such as “routine communications” with family and friends, and expressions of plaintiff’s interests and hobbies. [The court notes that plaintiff had a passion for the Philadelphia Phillies “which was not dampened after he moved to Kentucky from Pennsylvania.”]

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The court drops a footnote in the order, knocking the parties for getting the court involved in this discovery dispute. Plaintiff conceded that some of the information in the Facebook profile was discoverable. Defendants appeared to have backed away from their initial position that all of the information was discoverable, but they did not actually narrow their discovery requests to the items that plaintiff admitted were discoverable. Translation: the parties ended up wasting the court’s time, and should have worked it out themselves.

It still feels awkward that the court took the approach of actually logging in to plaintiff’s Facebook account using plaintiff’s password. Isn’t this a violation of the Facebook terms of service?

There’s another issue lurking in the background of these disputes that courts will be forced to confront: can a party be forced to consent to disclosure of information that falls under the Stored Communications Act? No case has directly confronted this question, although one court has held that a party’s default and fugitive status is not consent. (See “Being a Fugitive is Not Consent for Production under the Stored Communications Act.”)